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Essendon Bombers and James Hird dispute ASADA over the need for players to give evidence in Federal Court action

Updated
Thu 26 Jun 2014, 1:42 PM AEST

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James Hird and Essendon chairman Paul Little .... Hird and the Bombers will start legal action against ASADA in the Federal Court on Friday.

Getty Images: Scott Barbour

Essendon and suspended coach James Hird insist players do not need to participate in the legal proceedings it will commence against the Australian Sports Anti Doping Authority in the Federal Court in Melbourne on Friday.

The Bombers and Hird are taking action against ASADA claiming the anti-doping authority acted beyond the scope of its powers in carrying out its investigation of the club's 2012 supplements program.

Essendon was hit with heavy sanctions by the AFL in August last year for bringing the game into disrepute. The penalties included a 12-month suspension for Hird, omission from the 2013 AFL finals and a fine for the club of $2 million.

Ahead of the Federal Court directions hearing on Friday all parties lodged submissions with the court on Wednesday night.

ASADA has asked for the directions hearing to address whether Essendon players from the 2012 AFL season are "necessary parties" to the proceedings.

It says the court should hear from the existing parties and the Essendon players.

ASADA issued show cause notices to 34 current and former players on June 12 asking them to show they did not commit a doping infringement.

What is a show cause notice?

The Australian Sports Anti-Doping Authority (ASADA) has issued show cause notices to 34 Essendon players

In the show cause phase, players will be given 10 days to prove to ASADA they did not commit a doping infringement

During the 10-day period players may decide to launch a legal challenge against the notices

If ASADA's charges face a tribunal, the body will need to argue banned substances were administered

Any player found guilty faces a mandatory minimum two-year ban

If players demonstrate they were unwittingly given a prohibited substance, they may get a 50 per cent reduction on their penalty

Essendon's solicitor Josh Bornstein has applied for an injunction halting the show cause action by the players until the legal action against ASADA finishes.

In its court submission Essendon says "the players should not have been served the show cause notices and should not have to respond to them at all."

It goes on to say that requiring the players to respond to the show cause notices before the case is finally heard will render the proceedings worthless.

Both the Essendon and Hird submissions say they will oppose any application by ASADA to have the players join the proceedings to give evidence, saying it is not necessary under the court rules.

Hird's submission points out that legal representation for the players has advised they do not wish to join the proceedings.

Bornstein told the ABC's 7.30 program that Essendon takes the view very strongly that the players are not guilty of any violation of the ASADA code or regulations.

ASADA says it conducted separate investigation to AFL

ASADA anticipates that Essendon will accuse it of disclosing personal information to the AFL that is extraneous to ASADA's investigation and outside its statutory constraints.

ASADA will argue that it and the AFL conducted its own separate investigations, information passed onto the AFL was only for the purpose of ASADA's investigation, and the Act does not prohibit it from co-operating with the AFL.

Hird has also accused ASADA of acting beyond its powers in publishing last year's interim report with the AFL.

Hird's legal team will ask to see all correspondence between the AFL and ASADA.

ASADA is requesting a trial be heard by the court over two days starting on August 4. Hird is pushing for a start date of August 18.

Ahead of Friday's directions hearing 7.30 revealed that Stephen Dank, the sports scientist involved with Essendon's 2012 supplement program, was arrested on Wednesday and later released over allegations he stole peptides for a patient.